Monday, January 20, 2014

Impeachment by Extrinsic Evidence

A common question I've been asked while tutoring students as of late relates to extrinsic evidence. Most importantly is to understand what is meant by extrinsic evidence and how it plays into the rules regarding the impeachment of a witness. The simplest method for understanding the meaning of extrinsic evidence is to note that extrinsic evidence is evidence elicited through methods other than cross examination of a particular witness. For example, if witness X testifies about witness Y, the testimony by witness X is deemed extrinsic because the testimony regarding witness Y was not elicited by cross examination of witness Y.

And for purposes of the MBE, it's important to note that certain grounds for impeachment require that a foundation be laid during cross examination before extrinsic evidence can be introduced. For example, impeaching a witness by proving the witness has made a prior inconsistent statement may be offered through either cross examination of the witness or by extrinsic evidence. To prove the prior inconsistent statement by extrinsic evidence, however, requires that at some point the witness is given an opportunity to explain or deny the statement. Note, however, that this rule requiring an opportunity to explain the statement will not apply where the interests of justice require. In addition, extrinsic evidence is not allowable on prior inconsistent statements unless those statements are material. Otherwise the statements are deemed collateral, and the "collateral matter rule" prevents proving such statements by extrinsic evidence.

Similarly, evidence that a witness is biased may be offered both by cross examination and by extrinsic evidence. Here, however, the rules require that before a witness can be impeached through extrinsic evidence, the witness must first be asked, on cross examination, about the facts that show bias.

In regards to impeachment by conviction of a crime, both cross examination and extrinsic evidence are allowable. The extrinsic evidence in such instances will consist of a record of the judgment.

Impeachment by specific bad acts diverts from the above, and the diversion is worth noting. Cross examination to elicit evidence of the bad acts of the witness is allowable, but extrinsic evidence of such acts is not permitted. In other words, if on cross examination a witness is asked about a prior bad act (probative of truthfulness), and the witness denies have engaged in the act, a second witness cannot be called to dispute the denial as calling a second witness would be an attempt to prove the prior bad act by extrinsic evidence which is not allowable here.

Finally, note that sensory deficiencies (for example, claiming the witness was not wearing glasses at the time the witness claims to have witnessed a crime) can be proven both by cross examination of that witness, and by extrinsic evidence.

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